17-2731
    Gao v. Barr
                                                                                   BIA
                                                                              Nelson, IJ
                                                                           A073 131 789
                       UNITED STATES COURT OF APPEALS
                           FOR THE SECOND CIRCUIT

                               SUMMARY ORDER
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         At a stated term of the United States Court of Appeals
    for the Second Circuit, held at the Thurgood Marshall
    United States Courthouse, 40 Foley Square, in the City of
    New York, on the 22nd day of February, two thousand
    nineteen.

    PRESENT:
             ROBERT A. KATZMANN,
                  Chief Judge,
             ROBERT D. SACK,
             DEBRA ANN LIVINGSTON,
                  Circuit Judges.
    _____________________________________
    BIN GAO,
             Petitioner,

                  v.                                             17-2731
                                                                 NAC
    WILLIAM P. BARR, UNITED STATES
    ATTORNEY GENERAL,
             Respondent.
    _____________________________________

    FOR PETITIONER:                   James A. Lombardi, New York, NY.

    FOR RESPONDENT:                   Chad A. Readler, Acting Assistant
                                      Attorney General; Janette L.
                                      Allen, Senior Litigation Counsel;
                                      Lance L. Jolley, Trial Attorney,
                                      Office of Immigration Litigation,
                                      United States Department of
                                      Justice, Washington, DC.
    UPON DUE CONSIDERATION of this petition for review of a

Board of Immigration Appeals (“BIA”) decision, it is hereby

ORDERED, ADJUDGED, AND DECREED that the petition for review

is DENIED.

    Petitioner Bin Gao, a native and citizen of the People’s

Republic of China, seeks review of an August 22, 2017,

decision of the BIA affirming a February 24, 2017, decision

of an Immigration Judge (“IJ”) denying Gao’s motion to reopen.

In re Bin Gao, No. A073 131 789 (B.I.A. Aug. 22, 2017), aff’g

No. A073 131 789 (Immig. Ct. N.Y. City Feb. 24, 2017).                    We

assume the parties’ familiarity with the underlying facts and

procedural history in this case.           We have reviewed the BIA’s

denial of the motion to reopen for abuse of discretion and

considered whether its conclusion regarding changed country

conditions is supported by substantial evidence.                    Jian Hui

Shao v. Mukasey, 

, 168-69 (2d Cir. 2008).

    Gao   moved   to   reopen   in       order   to   apply   for    asylum,

asserting that he had converted to Christianity in the United

States and that worsening conditions for Christians in China

excused the untimely filing of his motion.              It is undisputed

that Gao’s 2017 motion to reopen was untimely as it was filed

nearly twenty years after his 1997 deportation order.                    See

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8 U.S.C.    § 1229a(c)(7)(C)(i);    8   C.F.R.    §§     1003.2(c)(2),

1003.23(b)(1).     However, the time limitation for filing a

motion to reopen does not apply if reopening is sought to

apply for asylum and the motion “is based on changed country

conditions arising in the country of nationality or the

country to which removal has been ordered, if such evidence

is material and was not available and would not have been

discovered    or   presented   at   the    previous       proceeding.”

8 U.S.C.     § 1229a(c)(7)(C)(ii);        see     also     8    C.F.R.

§§ 1003.2(c)(3)(ii), 1003.23(b)(4)(i).           The agency did not

err in finding that Gao failed to demonstrate such conditions.

    Gao does not dispute that his conversion to Christianity

and active religious practice constituted changes in personal

circumstances that do not fall under the exception for changed

country conditions to the usual time limitation.           See Li Yong

Zheng v. U.S. Dep’t of Justice, 

, 130-31 (2d Cir.

2005).     Accordingly, Gao had to show a material change in

conditions in China.     Because conditions for Christians in

China vary by province, Gao had to establish a material change

relevant to his home province of Fujian.         See Jian Hui 

, 170 (“[P]olicies and the means used to

enforce them can vary widely from one area of the country to

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another.     Thus . . . it is appropriate to review the evidence

to determine, first, what policy applies to the circumstances

at   issue   and,    second,       whether    local   officials    would    be

inclined to view the petitioner’s actions as a violation of

that policy.”).

       We find no error in the agency’s conclusion that Gao

failed to show the relevant change.                “In determining whether

evidence     accompanying      a    motion    to   reopen    demonstrates    a

material change in country conditions that would justify

reopening, [the agency] compare[s] the evidence of country

conditions submitted with the motion to those that existed at

the time of the merits hearing below.”                In re S-Y-G-, 24 I.

& N. Dec. 247, 253 (BIA 2007).               As the BIA stated, the 1995

U.S.    State    Department         report     showed    “a     longstanding

restriction by the Chinese government on the public practice

of Christianity.” Special App. 3.              That 1995 report provided

that “[t]he government generally tolerates the existence and

activities      of    the   unsanctioned           churches,”     but   “has

intermittently harassed [and raided and closed] unregistered

churches, and has declared its intent to register all of them

by the end of 1995, but implementation continues to be more

vigorous in some regions than in others.”                   Admin. Rec. 366.

                                       4
Concerning Fujian province, the report noted “[a] growing

number of cases from China, especially from the Fuzhou area

in     Fujian    Province,     claim       persecution     on    account    of

religion,” and that “religious . . . persecution . . .

undoubtedly exists . . . [and] [h]ouse churches [in this area]

are probably monitored and perhaps harassed as elsewhere in

China, but we have no reports thereof.”                  Admin. Rec. 366,

368.    By comparison, there is no record evidence of any recent

religious       persecution    in    Gao’s   home   province     of   Fujian.

Thus, on this record, the agency was not compelled to conclude

that Gao’s evidence reflected a change in conditions material

to his fear of harm as a Christian.              See Jian Hui 

.     The     agency    therefore    did   not    abuse    its

discretion in denying Gao’s motion to reopen as untimely.

See 8 U.S.C. § 1229a(c)(7)(C).

       The timeliness finding is dispositive, and we do not

reach the alternate ruling that Gao failed to establish prima

facie eligibility for relief and did not merit reopening as

a matter of discretion.             See 8 C.F.R. § 1003.23(b)(3) (“The

Immigration Judge has discretion to deny a motion to reopen

even if the moving party has established a prima facie case

for relief.”); INS v. Abudu, 

, 104–05 (1988)

                                       5
(observing that the agency may deny an untimely motion for

failure to demonstrate changed country conditions or prima

facie     eligibility   for   the       underlying   relief);   INS     v.

Bagamasbad, 

, 25 (1976) (“As a general rule courts

and agencies are not required to make findings on issues the

decision of which is unnecessary to the results they reach.”).

To the extent Gao challenges the agency’s decision not to

exercise    its   authority   to    reopen     sua   sponte,    we    lack

jurisdiction to review that determination.            See Centurion v.

Sessions, 

, 74 (2d Cir. 2017) (“We do not have

jurisdiction to review the . . . entirely discretionary

refusal to reopen a case sua sponte.” (internal quotation

marks omitted)).

    For the foregoing reasons, the petition for review is

DENIED.

                                FOR THE COURT:
                                Catherine O’Hagan Wolfe,
                                Clerk of Court




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